Dutch Court Says Linking Can Be A Form of Copyright Infringement

from the seems-a-bit-extreme dept

A somewhat troubling ruling has come out of a court in the Netherlands, where it has found that linking to infringing content could be infringing itself, if certain conditions are met (which they were in this case). The key part here was that the site that was sued was linking to material first, and thus revealing it to the world... even though it does not appear that the site in question uploaded or hosted the content. This is troubling for a variety of reasons which we'll get to, but first the background of the case.

A Dutch television presenter, Britt Dekker, did a nude photoshoot for Playboy, and a bunch of the images leaked ahead of the December, 2011 release of the magazine. A website called GeenStijl.nl had a story about it, and included a link to a zip file that contained all the images that had been uploaded to the cyberlocker FileFactory.com. Playboy had the file taken down from FileFactory, and GeenStijl linked again to the same images on Imageshack. And from there a game of whac-a-mole followed with Playboy having the images taken down, but the images quickly spread all over the place. For what it's worth, at the time, there was a lot of speculation that Playboy itself had leaked the images to build up buzz.

Either way, GeenStijl got sued for copyright infringement -- and they responded by pointing out that they just linked to the content. The court put forth a three pronged test, and found that GeenStijl, even with just links, met the criteria for infringement. As explained on the FutureOfCopyright site (linked above):

The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.

Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.

New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.

Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.

By my reading, all three of the prongs of the test, as presented here, are somewhat problematic. The reasoning on the first prong -- intervention -- just doesn't seem right. The claim that "the public wouldn't have had access" but for the link on GeenStijl isn't true. They did have access since the files were already on the cyberlocker. GeenStijl perhaps made it a lot more widely known, but at this point you're arguing about whether or not it's legal to make a factual statement. Did the photos exist on a cyberlocker? Yes. Saying so shouldn't be infringing.

The second prong really just seems like a repeat of the first prong. The entire argument that seems to have convinced the court is that GeenStijl was the first to link to the content. Under US law you face much more liability for leaking "pre-release" material, so you could argue that this is a similar situation in the Netherlands, but again, it's not GeenStijl "leaking" the material. They're acting as a journalist, telling people such content exists.

The final prong is completely useless. Basically it seems to say that because the article was popular, that's evidence for infringement. I can't see how that makes any sense at all. If GeenStijl was, for example, selling access to the images, then there's a much stronger argument of "profit." But just saying that because the site got a lot of traffic, they profited seems like a dangerous precedent.

The Future of Copyright article mentions the cases against FTD as being similar, but I'm not sure that's true. While a lower court had found FTD guilty for linking, on appeal it was said that links weren't the problem, it was the promoting of uploads that got FTD in trouble.

Either way, it's of little surprise that Tim Kuik, the head of the Dutch anti-piracy group BREIN, is cheering on this ruling, suggesting that this case will be useful in other efforts to go after sites that link to infringing content. Of course, given the specific nature of the ruling, including how much of it seemed to rely on the fact that GeenStijl was the first to somehow create an audience for these images, I do wonder if it really has that much value for BREIN in those types of cases. Similarly, it may be a bit exaggerated to claim -- as GeenStijl did in response to the ruling -- that the ruling outlaws Google. Again, the ruling does appear to be highly fact-specific.

It is a troubling ruling for a number of reasons. Merely setting up the precedent that a link itself is infringement has all sorts of problematic implications. But the highly specific details associated with the ruling, especially the reliance on being the first to publish the link, at least suggests that this has limited value as a wider precedent.

I know you don't like to acknowledge this, but intentionally linking to infringing content can create copyright liability. The Ninth Circuit held that Google could be liable for contributory infringement for inline linking. Once someone has knowledge that the link points to infringing material, the intent to cause infringement is imputed. The link itself materially contributes, so you have knowledge (intent) and material contribution which is contributory infringement.

Our tests for contributory liability are consistent with the rule set forth in Grokster. We have adopted the general rule set forth in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., namely: “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer,” 443 F.2d 1159, 1162 (2d Cir.1971). See Ellison, 357 F.3d at 1076; Napster, 239 F.3d at 1019; Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir.1996).

We have further refined this test in the context of cyberspace to determine when contributory liability can be imposed on a provider of Internet access or services. See Napster, 239 F.3d at 1019–20. In Napster, we considered claims that the operator of an electronic file sharing system was contributorily liable for assisting individual users to swap copyrighted music files stored on their home computers with other users of the system. Napster, 239 F.3d at 1011–13, 1019–22. We stated that “if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement.” Id. at 1021. Because Napster knew of the availability of infringing music files, assisted users in accessing such files, and failed to block access to such files, we concluded that Napster materially contributed to infringement. Id. at 1022.

The Napster test for contributory liability was modeled on the influential district court decision in Religious Technology Center v. Netcom On–Line Communication Services, Inc. (Netcom), 907 F.Supp. 1361, 1365–66 (N.D.Cal.1995). See Napster, 239 F.3d at 1021. In Netcom, a disgruntled former Scientology minister posted allegedly infringing copies of Scientological works on an electronic bulletin board service. Netcom, 907 F.Supp. at 1365–66. The messages were stored on the bulletin board operator's computer, then automatically copied onto Netcom's computer, and from there copied onto other computers comprising “a worldwide community” of electronic bulletin board systems. Id. at 1366–67 & n. 4 (internal quotation omitted). Netcom held that if plaintiffs *1172 could prove that Netcom knew or should have known that the minister infringed plaintiffs' copyrights, “Netcom[would] be liable for contributory infringement since its failure to simply cancel [the former minister's] infringing message and thereby stop an infringing copy from being distributed worldwide constitute[d] substantial participation in [the former minister's] public distribution of the message.” Id. at 1374.

Although neither Napster nor Netcom expressly required a finding of intent, those cases are consistent with Grokster because both decisions ruled that a service provider's knowing failure to prevent infringing actions could be the basis for imposing contributory liability. Under such circumstances, intent may be imputed. In addition, Napster and Netcom are consistent with the longstanding requirement that an actor's contribution to infringement must be material to warrant the imposition of contributory liability. Gershwin, 443 F.2d at 1162. Both Napster and Netcom acknowledge that services or products that facilitate access to websites throughout the world can significantly magnify the effects of otherwise immaterial infringing activities. See Napster, 239 F.3d at 1022; Netcom, 907 F.Supp. at 1375. The Supreme Court has acknowledged that “[t]he argument for imposing indirect liability” is particularly “powerful” when individuals using the defendant's software could make a huge number of infringing downloads every day. Grokster, 545 U.S. at 929, 125 S.Ct. 2764. Moreover, copyright holders cannot protect their rights in a meaningful way unless they can hold providers of such services or products accountable for their actions pursuant to a test such as that enunciated in Napster. See id. at 929–30, 125 S.Ct. 2764 (“When a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement.”). Accordingly, we hold that a computer system operator can be held contributorily liable if it “has actual knowledge that specific infringing material is available using its system,” Napster, 239 F.3d at 1022, and can “take simple measures to prevent further damage” to copyrighted works, Netcom, 907 F.Supp. at 1375, yet continues to provide access to infringing works.

Ignoring precedent doesn't make it go away. When someone knowingly links to an infringing file, it is for the purpose of facilitating infringement. It should come as no surprise that the law actually holds people responsible for the infringement they intend to facilitate.

Re: Re:

I'm responding to Mike's "worry": "It is a troubling ruling for a number of reasons. Merely setting up the precedent that a link itself is infringement has all sorts of problematic implications." I'm not applying that to the facts of the Dutch case.

Mike has made clear many times that he doesn't think linking should give rise to any liability. And usually he makes the "but if linking is infringement then Google is an infringer!" argument. This, of course, ignores the fact that there has to be intent. And it ignores the fact that Google can be an infringer for linking.

Google search's automated organizing of the web isn't infringement because there's no knowledge of linking to any specific infringing file. But once Google is given notice that a link points to an infringing file via a DMCA takedown notification or some other method, Google removes the link. Why? For the reasons mentioned by the Ninth Circuit. Once Google has knowledge that a specific link points to infringing material, Google is thereafter facing liability for whatever infringement occurs via that link. The intent to cause that infringement is imputed.

Mike sticks his fingers in his ears and pretends like linking creates no liability. The truth is that sometimes it does, and sometimes it doesn't. And don't be confused by the fact that the liability is for contributory infringement. Contributory infringers are still susceptible to the full range of remedies provided by the Copyright Act which include money damages and injunctive relief. A contributory infringer is an "infringer" under Section 501, and they are treated the same as a primary infringer.

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I'm not applying that to the facts

We know.

This, of course, ignores the fact that there has to be intent.

So, you think that copyrighted images should be off limits, even in the situation of the press? Tell, oh, every source of the news that's ever existed, because this is no different. A blog that says "Hey, someone leaked these photos! See? We're not lying, here's a link. (link)" isn't guilty of copyright infringement. Hint: think of how this could easily be used to stifle free speech, if you're weren't wrong.

Google blah blah blah Google, links, Google.

Google is a search engine, not a blog. In related news, oranges aren't apples.

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The press is typically covered by fair use. So, no. That's typically protected by the First Amendment. But links also have a functional aspect, and under certain conditions that functional aspect creates liability.

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Say there's a copyrighted video that I want to help others infringe upon

This is the crux of your argument, and, it so happens, where it fails. How do you differentiate between a blog merely informing people that a noteworthy copyrighted work is leaked, versus that they wanted to "help others infringe"?

Further, if you actually think about the actions monopolized by copyright, which one was violated? No copy was made by a link. It's just a pointer to a location; an address.

In the end, though, people really don't care about copyright, and it's people like you that were the cause; just ask Newton.

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Only the copyright owner has the right "to authorize" copying. 17 U.S.C. 106. A linker is authorizing copying when they don't have the right to do so. It is well-settled that one who authorizes copying when they don't have the right is a contributory or vicarious infringer.

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Let's assume your reading of the ruling is correct and that instead of saying that direct infringement by providing a link is impossible and contributory infringement is possible it actually said contributory infringement was certain. Even assuming that's true you're still absolutely wrong about this being 'well-settled' given that it's only the ninth circuit saying this.

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Let's assume your reading of the ruling is correct and that instead of saying that direct infringement by providing a link is impossible and contributory infringement is possible it actually said contributory infringement was certain. Even assuming that's true you're still absolutely wrong about this being 'well-settled' given that it's only the ninth circuit saying this.

The part that I said is well-settled is that one who authorizes an infringement without the authority to do so is a secondary infringer because they are violating the right holder's exclusive right "to authorize" that activity. Whether or not a linker is an authorizer is not well-settled, as you point out, but that's not the point I made. I believe that linking to an infringing can lead to liability, not that it necessarily does. It depends on the facts, as I've indicated several time.

I then said: "It is well-settled that one who authorizes copying when they don't have the right is a contributory or vicarious infringer." That is well-settled, as I'm sure you know. So, no, I don't agree that I said anything wrong.

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Yeah, it's not weaselly at all for you to say 'A is the same as B' and then follow that up with 'it is well-settled that B is illegal' when you know full well that it has not be 'well-settled' that A is illegal or that A is the same as B.

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Yeah, it's not weaselly at all for you to say 'A is the same as B' and then follow that up with 'it is well-settled that B is illegal' when you know full well that it has not be 'well-settled' that A is illegal or that A is the same as B.

I don't think I misrepresented anything. What I said is true. A linker is an authorizer (true; but unsettled), and it is settled that an authorizer is a contributory infringer (also true). I'm simply making an argument--one that the Ninth Circuit had no trouble making. I even cited precedent and everything.

So I said X implies Y (which I did not say was settled), and then I said Y implies Z (which I said is settled). You mistook what I said to imply that X implies Z is settled. I didn't say that. That you made a mistake does not mean I'm being "weaselly."

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It's the functional aspect of the link that is the problem:

In applying the DMCA to linking (via hyperlinks), Judge Kaplan recognized, as he had with DeCSS code, that a hyperlink has both a speech and a nonspeech component. It conveys information, the Internet address of the linked web page, and has the functional capacity to bring the content of the linked web page to the user's computer screen (or, as Judge Kaplan put it, to “take one almost instantaneously to the desired destination.” Id.). As he had ruled with respect to DeCSS code, he ruled that application of the DMCA to the Defendants' linking to web sites containing DeCSS is content-neutral because it is justified without regard to the speech component of the hyperlink. Id. The linking prohibition applies whether or not the hyperlink contains any information, comprehensible to a human being, as to the Internet address of the web page being accessed. The linking prohibition is justified solely by the functional capability of the hyperlink. Applying the O'Brien/Ward/Turner Broadcasting requirements for content-neutral regulation, Judge Kaplan then ruled that the DMCA, as applied to the Defendants' linking, served substantial governmental interests and was unrelated to the suppression of free expression. Id. We agree.

The First Amendment argument isn't going to win since it's the functional aspect of the link that's at issue, not the speech aspect. You can get heightened First Amendment scrutiny perhaps, but as the Second Circuit held, a copyright law will pass such scrutiny. The link isn't removed because of the speech aspect. It's removed because it's being used to cause infringement.

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So if I typed a URL out, but didn't bother using href tags to make it a link, it wouldn't be infringing?

What if I told you that my web browser lets me select text, right-click on it, and, if the text is a valid URL, open it in a new tab? Is that illegal for browsers to do, because it can facilitate copyright infringement?

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If someone in the U.S. provides a link to copyrighted material for the purpose of assisting others to infringe, it doesn't matter whether they also uploaded the material in the first place. They are still contributing to the infringement.

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Do you not understand that I'm speaking generally, and not about this particular case. I believe I've said this now three times. I'm addressing the idea that linking can never be infringement. It can. But it depends on the facts.

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Helping someone to commit a wrong is itself wrong. This is a concept that is centuries old. It shouldn't be too surprising. Copyright owners have the exclusive right "to do" and "to authorize" the enumerated rights. 17 U.S.C. 106. By linking to an infringing work, the linker is authorizing copying. This is infringement. Helping others to infringe is infringement. This is well-settled law.

Re: Google

Google doesn't have knowledge that any specific link points to infringing material until they are so notified. Once notified, they then have the intent. But not before. That's what the Ninth Circuit said, and I think the reasoning is sound. Under your theory all search engines would be liable for every infringing link--so there'd be no more search engines. The Ninth Circuit's theory is more persuasive, and it comports with the caselaw that says there must be specific knowledge, not general knowledge.

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Joe, I agree with you that is the legal position as perceived by the US judiciary today. But are you really saying that the game of whack-a-mole that this legal position causes is a definitive and satisfying solution? How hard is it for a lawyer to get the suggestion passed a judge that after repeated notifications Google or anyone should have specific knowlegde that links from this or that source are very likely to be infringing?

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That's a good point. I have no trouble with the idea that rogue sites shouldn't be linked to once it's been determined that such a site is dedicated to infringement. That's what SOPA and PROTECT IP were designed to do, and I thought the idea was a good one. Even without the bills, there's a good argument that once a website has shown that's its primary purpose is infringement, then linking to the site could create liability. I like the argument. It's why I think it's silly for Google to remove such sites from its autocomplete, but not from its search results entirely. If the site is rogue, then why link to it at all unless the purpose is to facilitate the infringement thereon?

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Yes, I thought that would be your position. I couldn't disagree more. User generated content and copyright infringement go hand in hand, there's no denying that. Culture is perceived to belong to the people, in my view rightly so. So either you agree with us that copyright in the information age is broken and needs a serious overhaul, or you agree that user generated content will need to be banned from the internet. Which I believe those with power and money would not mind at all: no self publicising, no pesky user reviews, no critical, dissenting voices. This whole copyright infringement saga is far broader than meets the eye, and it is naive in the extreme to pretend otherwise.

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I don't think it has to be so extreme and all-or-nothing. There's lots of UGC on the web that isn't infringing, and there's lots that is. I don't see how taking down sites dedicated to infringement destroys culture or the entire internet. That's silly.

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I'd love to get Mike into the discussion, but we all know that he doesn't like to stand by his words or answer his detractors when challenged. He'll just go on saying that linking doesn't lead to liability no matter what anyone says.

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Why? For the reasons mentioned by the Ninth Circuit. Once Google has knowledge that a specific link points to infringing material, Google is thereafter facing liability for whatever infringement occurs via that link. The intent to cause that infringement is imputed.

This is just silly --- the reason Google honors DMCA takedowns is that it doesn't want to lose its "safe harbor" --- said "safe harbor" being a much, much better defense than the mere taking down of infringing material upon notification. You seem to have some understanding of the law, so you probably do realize that without that safe harbor, Google would anyway have been liable for the infringement even if it could show that it had no possibility of being aware of it previous to the notification --- as far as I know, ignorance and/or lack of intention is not a proper defense against the tort of copyright infringement (under US law).

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This is just silly --- the reason Google honors DMCA takedowns is that it doesn't want to lose its "safe harbor" --- said "safe harbor" being a much, much better defense than the mere taking down of infringing material upon notification. You seem to have some understanding of the law, so you probably do realize that without that safe harbor, Google would anyway have been liable for the infringement even if it could show that it had no possibility of being aware of it previous to the notification --- as far as I know, ignorance and/or lack of intention is not a proper defense against the tort of copyright infringement (under US law).

Yes, they want to keep the safe harbor. The safe harbor is irrelevant the ultimate issue of liability, but it certainly drastically reduces the liability they might face if they are in fact liable. But the same inaction that could cause them to lose the safe harbor, namely, not responding to a DMCA takedown notification, could also subject them to contributory liability for the links they failed to take down. The safe harbors are basically (but not completely) just codifications of common law principles. Even if Google didn't qualify for the safe harbors, I don't see how Google could be liable for the links it provides absent specific knowledge that they point to infringing material.

I'd look to cases like this one:

According to the undisputed testimony of Google's Internet expert, Dr. John Levine, Web site publishers typically communicate their permissions to Internet search engines (such as Google) using “meta-tags.” A Web site publisher can instruct a search engine not to cache the publisher's Web site by using a “no-archive” meta-tag. According to Dr. Levine, the “no-archive” meta-tag is a highly publicized and well-known industry standard. Levine Report ¶¶ 33-37. Field concedes he was aware of these industry standard mechanisms, and knew that the presence of a “no archive” meta-tag on the pages of his Web site would have informed Google not to display “Cached” links to his pages. Despite this knowledge, Field chose not to include the no-archive meta-tag on the pages of his site. He did so, knowing that Google would interpret the absence of the meta-tag as permission to allow access to the pages via “Cached” links. Thus, with knowledge of how Google would use the copyrighted works he placed on those pages, and with knowledge that he could prevent such use, Field instead made a conscious decision to permit it. His conduct is reasonably interpreted as the grant of a license to Google for that use. See, e.g., Keane, 968 F.Supp. at 947 (copyright owner's knowledge of defendant's use coupled with owner's silence constituted an implied license); See also Levine Report ¶ 37 (providing the undisputed expert opinion that Google reasonably interpreted absence of meta-tags as permission to present “Cached” links to the pages of Field's site). Accordingly, the Court grants Google's motion that it is entitled to the defense of implied license, and denies Field's cross-motion that the defense is inapplicable.

Field v. Google Inc., 412 F. Supp. 2d 1106, 1116 (D. Nev. 2006).

There's other arguments too, like fair use, but I don't have time to dig that up right now.

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Mike has made clear many times that he doesn't think linking should give rise to any liability.

You are, once again, lying. I've never seen Mike say that links should never give rise to any liability.

He has said that linking should not be an infringement in and of itself. And the courts agree - including the case you just mentioned:

Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user’s computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any "material objects ... in which a work is fixed ... and from which the work can be perceived, reproduced, or otherwise communicated" and thus cannot communicate a copy.

This is relevant to the seizures, which are criminal cases, because there is no "secondary liability" in the criminal statutes. But that's not saying, and Mike never said, that there should be no liability at all.

I'm really getting sick of you lying, Joe. For a while, it was interesting debating the law with you. Now I realize you're just spouting off off-topic legal quotes to smear Techdirt. It's really sad.

So right there it's pretty clear that he doesn't see how linking and embedding can possibly be infringing. Towards the end of the article he states that "hosting the embed code" is not infringing. And he concludes that the infringement is "completely disconnected from the . . . the site doing the embedding." Of course, Mike was completely misreading the opinion out the Seventh Circuit. My opinion is that he did so intentionally, but that's neither here nor there.

So clearly I'm not lying, and Mike has explicitly claimed that links aren't infringing. Strike 1.

He has said that linking should not be an infringement in and of itself. And the courts agree - including the case you just mentioned:

Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user’s computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any "material objects ... in which a work is fixed ... and from which the work can be perceived, reproduced, or otherwise communicated" and thus cannot communicate a copy.

The Ninth Circuit there was discussing direct liability for infringement of the display right. The clue is that it comes under the section heading "III. Direct Infringement A. Display Right." The court said that linking is not direct infringement. I never claimed otherwise (although I do disagree with the Ninth Circuit on that point, and there is some caselaw and commentary that suggests otherwise).

You need to read the part of the opinion that comes later (under the helpful section heading "IV Secondary Liability for Copyright Infringement A. Contributory Infringement") where the court of appeals says that linking can give rise to indirect liability for infringement.

Given that the issue is contributory infringement, there has to be primary infringement, so in that sense linking "in and of itself" is not infringement. You could say that about all contributory infringers. But I never claimed otherwise. Nor do I believe Mike has ever made that distinction (he's too busy pretending like linking gives rise to no liability). So no, I don't get your point. Strike 2.

This is relevant to the seizures, which are criminal cases, because there is no "secondary liability" in the criminal statutes. But that's not saying, and Mike never said, that there should be no liability at all.

The Copyright Act doesn't distinguish between direct and indirect infringers, and both are treated the same under Section 506. So you're wrong. Section 506 creates criminal liability for infringers, whether direct or indirect.

And Mike did question how linking sites are "infringing at all," so you're wrong there too. Strike 3.

I'm really getting sick of you lying, Joe. For a while, it was interesting debating the law with you. Now I realize you're just spouting off off-topic legal quotes to smear Techdirt. It's really sad.

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So right there it's pretty clear that he doesn't see how linking and embedding can possibly be infringing.

In that article, he is asking how those particular sites - which did not host or store any materials themselves, and whose links were put there by users, not site owners - could be held liable for any form of infringement.

Given the myVidster ruling - which held that myVidster is not even liable for contributory infringement - it's a very good question.

But it does not mean that a site that provides links can never be liable for contributory infringement. Just that it must be shown that they must do more than merely provide links to infringing material.

Strike one.

You need to read the part of the opinion that comes later (under the helpful section heading "IV Secondary Liability for Copyright Infringement A. Contributory Infringement") where the court of appeals says that linking can give rise to indirect liability for infringement.

I have. But "contributory infringement" is not actually infringement. It can give rise to civil liability for contributing to someone else's infringement, but it is not in itself infringement.

A link site may be held liable for contributing to the infringement, if the site hosting the links is "intentionally inducing or encouraging direct infringement." That is, if the site hosting the link intentionally induced or encouraged users to upload infringing material to third-party hosting sites, it can be held liable for those users' infringements. But merely providing a link to already-existing material does not, by itself, do this.

And, yes, Mike made the distinction: "After all, the videos themselves were uploaded by other people to other sites. The streaming occurs from those other servers. The embed just points people to where the content is, but it does that neutrally, no matter what the content might be."

You may disagree with him that providing links does not "intentionally induce or encourage" the users to upload videos to the third-party sites. (You would be wrong, but you could disagree.) What you cannot claim is that Mike said no liability whatsoever could ever possibly arise from any linking sites. That would be an outright lie.

Strike two.

The Copyright Act doesn't distinguish between direct and indirect infringers, and both are treated the same under Section 506.

This is complete and utter bullshit. If the statutes didn't distinquish between "direct" and "indirect" infringers, then both would be "direct infringers" under the statute. Either you infringe on the rights granted in 17 USC 106, or you don't. If you don't, then you're not an infringer.

Civil law can hold some people liable for the infringement of others, under theories of "contributory" or "vicarious" infringement. But that liability does not arise from copyright statutes, but from "rules of fault-based liability derived from the common law." As Judge Posner observed in the myVidster ruling:

The law doesn't recognize "secondary infringement" either. The only distinctions relevant to this case are between direct infringement (which really ought just to be called infringement) and contributory infringement, and between contributory infringement and noninfringement. The direct infringers in this case are the uploaders.

This is so universally accepted, that I'm surprised you even bring it up. If you believe it, then you're even more ignorant of the law than I am.

But I don't believe you are. Which means that you're simply being misleading. Again.

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In that article, he is asking how those particular sites - which did not host or store any materials themselves, and whose links were put there by users, not site owners - could be held liable for any form of infringement.

That's not true. He never says that he's only discussing sites where the links are provided by third-parties. He says, "the videos themselves were uploaded by other people to other sites," but he does not say that the links were also provided by others. Nor would it matter whether the links were provided by others. If the site owner encouraged others to post infringing links, or if the site owner received notification (and thus knowledge) that infringing links were there, the site owner could still be liable. The fact that others post the links doesn't mean that the site owner can't be liable for them. So I don't get your point.

Given the myVidster ruling - which held that myVidster is not even liable for contributory infringement - it's a very good question.

But it does not mean that a site that provides links can never be liable for contributory infringement. Just that it must be shown that they must do more than merely provide links to infringing material.

Again, that doesn't contradict anything I said. Nor did Mike ever make the distinction that you're pretending he made. Mike didn't say, "Well, linking can lead to liability if other facts are present." He questioned whether it could ever lead to liability: "how is such a site infringing at all?" Nice try at revising, but no dice.

I have. But "contributory infringement" is not actually infringement. It can give rise to civil liability for contributing to someone else's infringement, but it is not in itself infringement.

Huh? That makes no sense. A contributory infringer is an infringer. Contributory infringement is actually infringement. The Supreme Court has referred to "the fact that an infringer is not merely one who uses a work without authorization by the copyright owner, but also one who authorizes the use of a copyrighted work without actual authority from the copyright owner." Sony v. Universal, 464 U.S. 417, 435, n.17 (1984). If you read Section 106, you'll notice that copyright owners have the right "to do and to authorize" the given acts. One who authorizes an infringement is an infringer. It's called "contributory infringement" because it is in fact infringement.

Here's the Ninth Circuit discussing contributory infringement:

1. Contributory Copyright Infringement

Contributory copyright infringement is a form of secondary liability with *795 roots in the tort-law concepts of enterprise liability and imputed intent. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir.1996); Perfect 10, Inc. v. Amazon.com, Inc. et al., 487 F.3d 701 (9th Cir.2007). This court and the United States Supreme Court (Supreme Court) have announced various formulations of the same basic test for such liability. We have found that a defendant is a contributory infringer if it (1) has knowledge of a third party's infringing activity, and (2) “induces, causes, or materially contributes to the infringing conduct.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004) (citing Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971)). In an Internet context, we have found contributory liability when the defendant “engages in personal conduct that encourages or assists the infringement.” A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir.2001) (internal citations omitted). In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court adopted from patent law the concept of “inducement” and found that “[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement.” 545 U.S. 913, 930, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005).3 Most recently, in a case also brought by Perfect 10, we found that “an actor may be contributorily liable [under Grokster ] for intentionally encouraging direct infringement if the actor knowingly takes steps that are substantially certain to result in such direct infringement.” Amazon.com, 487 F.3d at 727.

We understand these several criteria to be non-contradictory variations on the same basic test, i.e., that one contributorily infringes when he (1) has knowledge of another's infringement and (2) either (a) materially contributes to or (b) induces that infringement. Viewed in isolation, the language of the tests described is quite broad, but when one reviews the details of the actual “cases and controversies” before the relevant court in each of the test-defining cases and the actual holdings in those cases, it is clear that the factual circumstances in this case are not analogous. To find that Defendants' activities fall within the scope of such tests would require a radical and inappropriate expansion of existing principles of secondary liability and would violate the public policy of the United States.

Perfect 10 v. Visa, 494 F.3d 788, 794-95 (9th Cir. 2007).

If you look at Section 501, it states: "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 . . . .is an infringer of the copyright." Those rights include the right to do and to authorize an infringement. One who contributes to the infringement of another is himself an infringer. This follows from the source of contributory infringement, which is the tort doctrine of enterprise liability. Contributory infringers are jointly and severally liable with the primary infringers. They are both infringers, liable for the same infringement. The law considers them to have acted together to cause the same infringement.

A link site may be held liable for contributing to the infringement, if the site hosting the links is "intentionally inducing or encouraging direct infringement." That is, if the site hosting the link intentionally induced or encouraged users to upload infringing material to third-party hosting sites, it can be held liable for those users' infringements. But merely providing a link to already-existing material does not, by itself, do this.

That's not what the Ninth Circuit said in Perfect 10 v. Amazon.com, which I quoted at length. It matters not whether the linker or site hosting the links played a part in uploading the infringing file. The court of appeals said that Google could be liable for failing to remove a link to infringing material. There was no condition that Google had to have played a part in that material being uploaded to a third-party site in the first place. Nor does that make any sense. The court makes clear that the link itself materially contributes to the underlying infringement without the need to show that the site played a role in placing the infringing material on other sites. If the site played such a role, that could lead to liability as well.

And, yes, Mike made the distinction: "After all, the videos themselves were uploaded by other people to other sites. The streaming occurs from those other servers. The embed just points people to where the content is, but it does that neutrally, no matter what the content might be."

That "neutrally" claim made me laugh. That's like saying the bullet that came out of my gun and into your head flew there "neutrally." It ignores the fact that I pointed the gun at your head in the first place. Moreover, that quote only shows that Mike was making a distinction about who put the files on the third-party sites to begin with. That mentions nothing about the links, nor does your new argument (one that Mike did not make) that the linker must also have played a role in the uploading of the linked-to file hold water. The Ninth Circuit found that Google could be liable for the link without reference to Google's role in the uploading of the linked-to file.

You may disagree with him that providing links does not "intentionally induce or encourage" the users to upload videos to the third-party sites. (You would be wrong, but you could disagree.) What you cannot claim is that Mike said no liability whatsoever could ever possibly arise from any linking sites. That would be an outright lie.

I don't disagree that subsequently linking to a file that someone else already uploaded doesn't encourage that person to commit an act that they already have committed. That makes no sense. About a linking site, Mike questioned "how is such a site infringing at all?" It is not a lie for me to say that Mike doesn't think that links should give rise to liability when he explicitly questioned such a thing.

This is complete and utter bullshit. If the statutes didn't distinquish between "direct" and "indirect" infringers, then both would be "direct infringers" under the statute. Either you infringe on the rights granted in 17 USC 106, or you don't. If you don't, then you're not an infringer.

Contributory infringers are jointly and severally liable with the primary infringers they aided. I'm not saying that both direct and indirect infringers are direct infringers. I'm saying that under the Act, both are infringers. A contributory infringer is an infringer, as I've pointed out. The Act treats both the same in that both are jointly and severally liable for a given act of infringement. Both the primary and the secondary infringers are liable together for the infringing act they both worked together to bring about.

Civil law can hold some people liable for the infringement of others, under theories of "contributory" or "vicarious" infringement. But that liability does not arise from copyright statutes, but from "rules of fault-based liability derived from the common law." As Judge Posner observed in the myVidster ruling:

The law doesn't recognize "secondary infringement" either. The only distinctions relevant to this case are between direct infringement (which really ought just to be called infringement) and contributory infringement, and between contributory infringement and noninfringement. The direct infringers in this case are the uploaders.

Right there Posner says that there is "contributory infringement," which just above you said doesn't exist. And you're pulling that quote from the Ninth Circuit out of context. The court of appeals said:

We must next consider whether Google could be held liable under the first category of contributory liability identified by the Supreme Court, that is, the liability that may be imposed for intentionally encouraging infringement through specific acts.11 Grokster tells us that contribution to infringement must be intentional for liability to arise. Grokster, 545 U.S. at 930, 125 S.Ct. 2764. However, Grokster also directs us to analyze contributory liability in light of “rules of fault-based liability derived from the common law,” id. at 934–35, 125 S.Ct. 2764, and *1171 common law principles establish that intent may be imputed. “Tort law ordinarily imputes to an actor the intention to cause the natural and probable consequences of his conduct.” DeVoto v. Pac. Fid. Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir.1980); Restatement (Second) of Torts § 8A cmt. b (1965) (“If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.”).

Perfect 10 v. Amazon.com, 508 F.3d 1146, 1170-71 (9th Cir. 2007).

So the court of appeals did not say "that liability does not arise from copyright statutes," they said that liability is to be examined under the tort concepts from which it arose such as enterprise liability. This includes the concept that secondary tortfeasors are jointly and severally liable with the primary tortfeasors they assist. Both are liable together for the single infringement.

This is so universally accepted, that I'm surprised you even bring it up. If you believe it, then you're even more ignorant of the law than I am. But I don't believe you are. Which means that you're simply being misleading. Again.

So because you misunderstand the law, I'm ignorant? I don't see it. I don't lie. I may get stuff wrong, but I try very hard to back up everything I say and to be careful with my words. I hate getting stuff wrong.

One thing I think you're missing from Flava Works is that Posner said that they couldn't be liable for contributory infringement for embedding links to infringing videos hosted elsewhere because there was no evidence that anyone clicked on any of the links: "In contrast, Flava's pirated videos are not sold, and there isn't even admissible evidence that they're actually being accessed via myVidster, rather than via other websites, and if they are not, myVidster is not contributing to their performance." Perhaps once discovery is complete (the motion for a preliminary injunction was filed well before discovery concluded) it'll be a different story.

And another thing you're missing is the import of the right "to authorize" in Section 106. While the Supreme Court in Sony said that contributory infringement is not explicitly mentioned the Act, the right "to authorize" in fact is an explicit mention of contributory infringement. As Patry explains in his treatise:

Section 106 grants copyright owners the right “to do and to authorize” any of the exclusive rights enumerated therein. The committee reports explain:Use of the phrase “to authorize” is intended to avoid any questions as to the liability of contributory infringers. For example, a person who lawfully acquires an authorized copy of a motion picture would be an infringer if he or she engages in the business of renting it to others for purposes of unauthorized public performance.

Lower courts have wrongly assumed the statement is true, but as the committee reports just quoted indicate, it isn't: the right granted in section 106 “to authorize” is an express statement of contributory infringement.

6 Patry on Copyright § 21:43.

The legislative history is clear that the right "to authorize" was meant to cover contributory infringement. Other courts have picked up on this, but there is definitely some confusion on the point caused by the Supreme Court's careless statement to the contrary.

Have a good weekend, Karl. I won't have time for another lengthy response today.

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In that particular case on that particular record, myVidster wasn't liable. But nowhere in the opinion does the court of appeals say that a linking site can never be liable.

And neither did Mike. He said a link can never be infringement. He's right.

Huh? That makes no sense. A contributory infringer is an infringer.

This is wrong. A contributory infringer is one who contributes to the infringement of another. They need not, themselves, actually infringe anyone's copyright to be considered liable.

And it is indeed a big difference, because the quote from Mike was specifically about the myVidster case. That case was significant because the MPAA had claimed that linking or embedding is direct infringement. The exact quote: "myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work."

As it turns out, the MPAA was wrong. Big surprise there.

Sony v. Universal, 464 U.S. 417, 435, n.17 (1984).

Here's another direct quote from Sony: "The Copyright Act does not expressly render anyone liable for infringement committed by another. [...] The absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity."

And half of the passage you quoted explained exactly how secondary infringement is not in the copyright satute, but arose solely from civil case law. "Contributory copyright infringement is a form of secondary liability with roots in the tort-law concepts of enterprise liability and imputed intent." "In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court adopted from patent law the concept of 'inducement.'" And so on.

It's really amazing that the very case you quote explains how you're wrong.

In civil cases, it doesn't make that much difference. But in criminal cases, it does. Criminal cases cannot go beyond the "express language in the copyright statute." They cannot use the contributory infringement standards from Napster, Grokster, etc, because those standards did not arise from the copyright statute - as the court in Sony made explicitly clear.

As Patry explains in his treatise:

Patry is right in one sense - the "to authorize" phrase is designed to punish contributory infringers. It does this by making them no longer contributory infringers, but direct infringers.

Of course, "authorized" is a very strong word - for example, Napster or Grokster didn't "authorize" the use of any copyrighted materials. They materially contributed to others' infringements; they induced infringement by others. But the doctrine of contributory infringement that was created under Napster, Grokster, etc., had absolutely nothing to do with "authorizing." As the text of the cases themselves make absolutely clear, those cases created their versions of secondary liability directly from civil case law, not 17 USC.

As an aside - here's a phrase by Patry that I really love:

There is no reason to keep pretending that the Copyright Wars involve matters of morality or principle - they don't and never have. The Copyright Wars and their predecessors have always been about one thing and one thing only - a fruitless effort to resist, to the end, the very nature of capitalism, which is a dynamic, creative force by which new innovations and business models replace old ones.

That's not what the Ninth Circuit said in Perfect 10 v. Amazon.com, which I quoted at length.

Sorry. The Techdirt link you pointed me to was about myVidster, which was a streaming case. In that case, the link site would have to induce or encourage direct infringement, because viewing an unauthorized performance in private is not an infringing act. Even if the link site actively encouraged people to watch those streams, they would not be liable for infringement. At least according to Judge Posner.

So, in that particular case, the linking site would have to directly assist or encourage the uploaders, since they are the only ones who are directly infringing. And it was absolutely apropos to the website seizures, since the majority of them are streaming cases (amazingly enough).

The Perfect 10 case dealt with users who were downloading (i.e. copying) images to their computers, which is an infringement in and of itself, so the above doesn't apply. And, yes, in that particular case, Google could be liable for contributory infringement (but not direct infringement, inducement, or vicarious infringement) if they "knowingly takes steps that are substantially certain to result in such direct infringement."

However, merely providing a link does not impute such knowledge; they must have "actual knowledge that specific infringing material is available using its system" (emphasis in original).

Right there Posner says that there is "contributory infringement," which just above you said doesn't exist.

See? Lying again. I never said that contributory infringement doesn't exist. I said that it is the application of liability to people who do not themselves infringe. And I am right.

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Let's see if we can reign this in.

Do you agree that under the Ninth Circuit's reasoning in Perfect 10 v. Amazon.com, a party that knowingly links to an infringing file can be liable as a contributory infringer for whatever infringement takes place by others who use that link?

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Interesting demand, seeing as you are not even capable of reigning in your compulsive hatred of Techdirt, and the insults and borderline slander that go along with it.

But, sure, I'll go with it.

Do you agree that under the Ninth Circuit's reasoning in Perfect 10 v. Amazon.com, a party that knowingly links to an infringing file can be liable as a contributory infringer for whatever infringement takes place by others who use that link?

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Why, hello Tim Kuik! Didn't know you were using this alias. Explains why I think average_joe is damn obnoxious.

In any case, besides all you annoying square and limited view of the world where "the law is the law" I do agree, partially, that the news outfit kept putting the images on. However there are a few points that should be addressed before pointing fingers:

1- They are reporting. Reporting. So they just updated the links where the material was available as it was part of the article.
2- The material is already public anyway. You can't take back what has already spread to the public. If you tell your password out loud people will remember it regardless of you shouting for them to forget. So there's little point in trying to censor anything over it. The Internet has a memory. And it has Barbra Streisand.
3- Of course none of that matters in face of the law but it's pretty clear they DID NOT leak (prong number 1 down), they just reported about something that was already on the Internet (prong number 2 down) and didn't profit on the works of Playboy but rather in the service provided (news.. and prong 3 is down).

So unless you are admitting that the law can be interpreted in multiple ways, all your previous whining that "the law is the law" is invalidated since you are conceding the law can have interpretations based on each different case.

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Ninja, I'm not talking about this particular case or the law in the Netherlands. I'm talking about Mike's notion that linking isn't/shouldn't be infringement. If he really believed that infringement is bad (which he only pretends to believe), then he wouldn't think that holding people liable for the infringement they intend to cause via links they knowingly provide for that purpose is bad. But Mike's a pirate apologist and a liar and he will always defend everything people do that assists in infringement, like linking.

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As the guy above said:

So, you think that copyrighted images should be off limits, even in the situation of the press? Tell, oh, every source of the news that's ever existed, because this is no different. A blog that says "Hey, someone leaked these photos! See? We're not lying, here's a link. (link)" isn't guilty of copyright infringement. Hint: think of how this could easily be used to stifle free speech, if you're weren't wrong.

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Not a convincing argument. If the link is for the purpose of helping others infringe, and others in fact infringe using that link, then liability attaches because one who assists an infringement is an infringer. It's pretty simple, really. In your view, people should be able to help others infringe without liability. But in the legal view, where infringement is in fact a wrong, helping someone commit a wrong is itself wrong. You're just working backwards. Just like Mike.

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... As opposed to giving a link to something that will help someone with a school project?

Honestly I don't see how linking to anything could be consider infringing. I agree with the AC above you: It isn't and shouldn't be. It's just a link. What is the harm in clicking on something that could be useful in getting something done?

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If the link is purposefully posted with the intent to assist in a wrongdoing, then that creates liability. Helping someone commit a wrong, if done purposefully, is itself wrong. Again, this notion developed in the common law, and the reasoning applies no matter what the wrong.

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Could I ask you something: why should I care? How is it that if I click on a random link with the belief that I'm doing something wrong, I get pointed out for creating a liability? How does one tell if they are clicking this link for evil purposes? I really don't get it. Clicking on a link does nothing other than going to a site. What we do on that site could count, but the link itself? I don't get it!

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What I'm saying is that if you click on a link that takes you to an infringing file and then you infringe by downloading that file, then the person who supplied you the link for the purpose of facilitating your direct infringement is also liable for your infringement as a contributory infringer. I'm not talking about situations where you click on a link and you don't know where it's going to take you or anything like that. I'm talking about links provided for the purpose of helping people infringe that get used for that very purpose. Think of a site like TVShack.net that collected links for the purpose of helping others infringe.

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It's my opinion that Mike is a pirate apologist down to his core. He will always hate all things copyright, and he will always defend the pirates and blame the victims. I find him to be a fundamentally dishonest person who will go to any length and stoop to any low just denigrate anyone and anything pro-copyright. He is completely arrogant, conceited, haughty, and derogatory to anyone who dares think or say anything that differs from his point of view. Day after day his actions only strengthen my opinion. The fact that he refuses to ever discuss directly his personal beliefs about copyright and piracy says it all. Techdirt is a pirate apologist blog if there ever was one, and Mike is the most insincere and deceitful person in the entire IP debate. I find him to be truly a repulsive person. You may feel differently, but that's my opinion.

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It does say it all. It says he wants to have an objective discussion of the facts and you want to turn this into some kind of credibility test where if people to hold the same values or belief as you you can dismiss them out of hand. You're so adherent to that even when someone refuses to engage on that base level you pretend as if that's the answer you wanted to hear instead of, you know, actual arguing anything on the merits alone. You're attacking his credibility because you're desperate and pathetic.

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It does say it all. It says he wants to have an objective discussion of the facts and you want to turn this into some kind of credibility test where if people to hold the same values or belief as you you can dismiss them out of hand. You're so adherent to that even when someone refuses to engage on that base level you pretend as if that's the answer you wanted to hear instead of, you know, actual arguing anything on the merits alone. You're attacking his credibility because you're desperate and pathetic.

I don't care if he holds different values. The world would be a boring place if everyone thought the same things I think. I care that he's arrogant and deceitful. Those are personality flaws that he should work on. I'm attacking his credibility because I find he has none. After years of reading this blog and trying to engage him myself and watching others try, I've come to the inescapable conclusion that he's just a zealot who doesn't ever want to be challenged. He'll go on spouting his nonsense no matter how much evidence is stacked against him. He only cares about spreading his agenda, not in seeking out the truth.

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Clearly you do care if he holds different values or you wouldn't making inane statements like "The fact that he refuses to ever discuss directly his personal beliefs about copyright and piracy says it all." If you really didn't care what his personal values were then why would you ask to discuss them, imply that he should discuss them, and even more so imply that by not discussing them he's 'said it all?' You literally just boiled down the entire discussion to a litmus test of 'if you will not discuss directly your personal beliefs you've said all I need you to say.' That's the opposite of not caring and it's the opposite of arguing based on evidence and logic.

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I care that he won't discuss his beliefs because I think he's lying about what he really believes. He's doesn't want to have any sort of discussion where he directly discusses his personal beliefs because he knows that his deception will come to light. It's the deceit that bothers me, not the fact that he has differing opinions than me.

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So you just assume bad faith. Remind me again how you're just here to talk about things directly and not second guess people's motives or beliefs because they don't matter to you?

I don't just assume bad faith. After two and a half years of reading this blog and watching Mike be weaselly (nice word, thanks) and arrogant and all the other nasty things I've witnessed, I've deduced bad faith. There is no other explanation.

I didn't say I'm not here to second guess people's motives or beliefs. I'm OK with a myriad of beliefs, and I have no problem being challenged on mine (as you're doing) or challenging others. It's when bad faith enters the picture that I get upset. And I think Mike runs in "bad faith" mode 24/7.

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Look, if you maintain that copyright as it is now is compatible with the open, information society we are living in, you are equally dishonest. It just does not compute. And add to that the implications for freedom of speech your position entails, which proves that your purpose is very sinister indeed.

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Look, if you maintain that copyright as it is now is compatible with the open, information society we are living in, you are equally dishonest. It just does not compute. And add to that the implications for freedom of speech your position entails, which proves that your purpose is very sinister indeed.

The two are in conflict, that much is clear. I don't agree that it's all-or-nothing as you do. I think a balance is possible and preferable. You think in extremes. I don't.

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I guess that explains why you never come forward with an opinion on any of the news these articles highlight. Judging by your comments alone, it seems like your satisfied to work your argument within the confines of what the law says, even if that particular law seems unjust.

So basically, until you start thinking outside the box with your comments, no one will take you seriously.

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I guess that explains why you never come forward with an opinion on any of the news these articles highlight. Judging by your comments alone, it seems like your satisfied to work your argument within the confines of what the law says, even if that particular law seems unjust.

So basically, until you start thinking outside the box with your comments, no one will take you seriously.

What the law says is a different issue than whether it's just. Mike starts with his conclusion, which is usually an extremist position on what's just, and then works backward to make the law fit that conclusion. So with linking, he doesn't think policy-wise that it should lead to liability. So when he looks at the law, what does he see? No liability. I prefer to look at the what the law actually says and to discuss what is the better policy separately.

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That's the groove of a lot of these opinion blog posts. The whole point is to discuss whether it's just or not, not make assumptions about the author's ideology.

This is a perfect example in your first post:

"I know you don't like to acknowledge this, but intentionally linking to infringing content can create copyright liability."

This is the entire basis for your posting here, to prove that Mike doesn't like to acknowledge that linking content can create copyright liability.

It's common sense or at least should be that linking can create copyright liability, and I doubt Mike would argue about that, but saying this gives you a reason to start picking a fight instead of contributing to some kind of meaningful discussion.

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Similar to the English law

This seems similar to the English law in this area as used in the cases against Newzbin and The Pirate Bay. In the latter (which refers to the first), the operators of the site were found jointly liable for copyright infringements of the site users on the grounds that they:
- induced, incited or persuaded the users to infringe, and
- acted with the users "pursuant to a common design to infringe".

That seems to be similar to the first paragraph quoted above. Additionally, the court also found them liable for "authorising" the infringing acts of the site's users (authorisation of infringement is an infringement itself under English law), in which case they looked at:
- The convenience of the means of infringing,
- Inevitability of infringement (not just inevitable, but intended),
- Degree of control (i.e. operators did remove some links),
- Steps to prevent infringement (i.e. none).

Again, similar patterns emerging. As far as "actual knowledge" of specific infringements goes, that is the sort of language used in the E-Commerce Directive - which will also apply in the Dutch case.

Anyway, back to the underlying principle of liability for linking; I think the mistake many people make (including, perhaps, Mike) when it comes to copyright and the Internet is that they think that the precise technology, and the precise location of the data etc. matter. They don't. The law talks about infringements; in EU law that includes "communicating to the public", which is intentionally broad enough to cover all sorts of things.

But again, that is missing the point. This (and stuff about linking) isn't about primary liability, but secondary or joint liability, which are pretty entrenched concepts in common law jurisdictions; if you're sufficiently involved in someone else's tort, you may be liable for it yourself. I haven't read the Dutch court judgment, but the principle seems to be that if you are knowingly and deliberately inciting other people to break the law (especially doing so for personal profit), you should be liable for doing so, whether or not you did the actual primary infringement.

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A link doesn't fit the description of what's being discussed in that portion of the opinion but I suspect you knew that because the full ruling makes clear that hyperlinks were not infringing and thumbnails were a fair use because a search engine is a transformative use. Nowhere in that ruling, even the section you quoted, does it talk about hyperlinks themselves constituting infringement.

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A link doesn't fit the description of what's being discussed in that portion of the opinion but I suspect you knew that because the full ruling makes clear that hyperlinks were not infringing and thumbnails were a fair use because a search engine is a transformative use. Nowhere in that ruling, even the section you quoted, does it talk about hyperlinks themselves constituting infringement.

That's not so.

The very first sentence of the opinion: "In this appeal, we consider a copyright owner's efforts to stop an Internet search engine from facilitating access to infringing images." 508 F.3d 1154. The issue is Google's search engine, specifically its image search which links to infringing images.

The court said several things:

I. Direct Infringement; 508 F.3d at 1159-68.

(1) Applying the server test, the court found that Google didn't directly violate the display right for inline linking to full size images hosted elsewhere.

(2) Using similar reasoning, the court also found that Google didn't directly violate the distribution right by inline linking to full size images hosted elsewhere.

(3) As to thumbnails, the court found that Perfect 10 had made out a prima facie case of direct infringement of the display right. However, the use was fair so there no liability on Google's part.

There was a similar ruling as to the cache that I'm skipping.

II. Indirect Infringement; 508 F.3d at 1168-75.

(4) The court found that Google could be liable for contributory infringement for failing to remove links when notified that they pointed to infringing material.

(5) The court found that Google wouldn't be liable for vicarious infringement since they didn't have the right and ability to control the direct infringers.

******

Here's the text that shows I'm right.

Right after the section heading "Secondary Liability for Copyright Infringement," the court states: "We now turn to the district court's ruling that Google is unlikely to be secondarily liable for its in-line linking to infringing full-size images under the doctrines of contributory and vicarious infringement." 508 F.3d at 1168-69. The issue was whether Google was "secondarily liable in light of the direct infringement that is undisputed by the parties: third-party websites' reproducing, displaying, and distributing unauthorized copies of Perfect 10's images on the Internet." 508 F.3d at 1170.

So the court is explicitly talking about secondary liability for inline linking to infringing images hosted on third-party websites.

Look at the section labelled "A. Contributory Infringement." That entire section is about whether Google is contibutorily liable for infringement for inline linking to images hosted on third-party websites.

The court concludes by stating: "Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps." 508 F.3d at 1172. So by knowingly providing links to infringing images in its search results, Google is facing contributory liability. The way Google makes Perfect 10's images available via its search engine is by LINKS. That's the whole point.

There was a factual dispute that needed to be resolved, so the case was remanded: "Therefore, we must remand this claim to the district court for further consideration whether Perfect 10 would likely succeed in establishing that Google was contributorily liable for in-line linking to full-size infringing images under the test enunciated today." 508 F.3d at 1173. It couldn't be any clearer than that.

So, no, I don't agree with you. The issue was inline linking, not hyperlinking, but I don't see how that could possibly make any difference. Either type of linking could lead to contributory liability under the court's logic.

is not an accurate restatement of that opinion and therein lies the problem. The court didn't find that linking is contributory infringement it found that failing to remove the links after being notified they were to infringing material could be contributory infringement. You're essentially trying to conflate the 'knowledge' being refereed to in the ruling, being actual legal knowledge as a result of direct notification, with 'common sense' or general knowledge, which is really nothing more than an educated guess or suspicion. Again, nowhere in that ruling, even the sections you've quoted, does it talk about links themselves constituting infringement it takes about lack of action after having knowledge opening the possibility of contributory infringement. It's like you're reading into it what you wish it said instead of what it actually said.

is not an accurate restatement of that opinion and therein lies the problem. The court didn't find that linking is contributory infringement it found that failing to remove the links after being notified they were to infringing material could be contributory infringement. You're essentially trying to conflate the 'knowledge' being refereed to in the ruling, being actual legal knowledge as a result of direct notification, with 'common sense' or general knowledge, which is really nothing more than an educated guess or suspicion. Again, nowhere in that ruling, even the sections you've quoted, does it talk about links themselves constituting infringement it takes about lack of action after having knowledge opening the possibility of contributory infringement. It's like you're reading into it what you wish it said instead of what it actually said.

Last post, then I have to go. The court found that linking to infringing material could be contributory infringement once Google received notice that the link pointed to infringing material. As the court explained, once Google has that knowledge, it is imputed with the intent to cause whatever infringement occurs via the link. A person who intentionally links to infringing material doesn't have to be notified that their like points to infringing material. They already know this. So their intent to cause infringement via the link they provided can be imputed immediately.

I'm not conflating specific knowledge with general knowledge. Google becomes potentially liable when it knows a specific link points to infringing material. A person that knowingly provides a link to infringing material already has specific knowledge that the link points to infringing material. There's nothing general about it.

The ruling says that if Google continues to provide a link after it is informed that the link is infringing, then Google can be liable. Similarly, a person who provides a link to specific infringing material is already liable for that link because they already have the knowledge. Google needs to be told because otherwise they don't have the knowledge. A person that knowingly posts such a link doesn't need to be told anything since they already know.

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"A person who intentionally links to infringing material doesn't have to be notified that their like points to infringing material. "

This is the point where your argument divorces it self entirely from what the case actually said into what you wish it said.

"I'm not conflating specific knowledge with general knowledge."

Yet you literally just did that in the sentences immediately proceeding this one. You want to pretend people 'already know' that it's infringing material without receiving notice but the court didn't rule that way. How would they get that knowledge without a notice? They simply cannot. Everyone needs to be told, not just Google, that's the whole point of the notice and takedown process. It's not 'well when you just know it's infringing and takedown.'

You're clearly not understanding the case, it talks about one situation: where google has specific knowledge as a result of a notice, and you want to pretend the ruling applies to another situation, where the linker has been given no knowledge and you just assume they have it because piracy.

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But a person who on purpose posts a link that they already know points to infringing content ALREADY KNOWS that the link points to infringing content. No one has to tell them because they already know.

How can someone knowingly link to infringing material yet not know that they're linking to infringing material until someone tells them they are? That makes zero sense.

So when you say they cannot know, that makes no sense. I'm talking about people who do know and who post the link with that knowledge.

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But a person who on purpose posts a link that they already know points to infringing content ALREADY KNOWS that the link points to infringing content. No one has to tell them because they already know.

How do they 'ALREADY KNOW?' Legally that knowledge can only come from one place, the copyright holder, because only they know what uses are authorized. Did the copyright holder give them notice? No? Then HOW COULD THEY KNOW?

How can someone knowingly link to infringing material yet not know that they're linking to infringing material until someone tells them they are? That makes zero sense.

Of course it makes zero sense but it doesn't make sense because you're begging the question. You frame it as if they already know and pretend that's the end of it without asking how that premise came to be. I'm asking how that premise came to be.

So when you say they cannot know, that makes no sense. I'm talking about people who do know and who post the link with that knowledge.

Sheesh.

It doesn't make any sense to you because you refuse to examine your assumption that they magically know already no matter how many times I point out that it's faulty.

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How do they 'ALREADY KNOW?' Legally that knowledge can only come from one place, the copyright holder, because only they know what uses are authorized. Did the copyright holder give them notice? No? Then HOW COULD THEY KNOW?

Are you serious? Under your logic, no one could ever be liable for willful infringement unless first told by the copyright holder that they were infringing. That's not how it works. A person can knowingly link to a work that they know to be infringing without the copyright owner being involved whatsoever. It's silly to say that a person can never know that a link they're posting points to an infringing work. People knowingly post such links all the time. If that's your best argument, I'm not persuaded.

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No, under my logic no one could ever be liable for contributory infringement for posting a link unless first told by the copyright holder that the material hosted and uploaded by a third party was infringing which is the same logic the court used.

A person can knowingly link to a work that they know to be infringing without the copyright owner being involved whatsoever. It's silly to say that a person can never know that a link they're posting points to an infringing work. People knowingly post such links all the time.

How can they know? You still haven't answered the question you just keep avoiding it and restating your premise. I've rejected your premise until you provide an explanation of how it comes to be and that explanation must include the copyright holder because they're the only ones that start with the knowledge. So how does it get from them to the person with the link?

If that's your best argument, I'm not persuaded.

This from the guy that assumes what he's trying to prove and then 'proves' it.

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How can they know? You still haven't answered the question you just keep avoiding it and restating your premise. I've rejected your premise until you provide an explanation of how it comes to be and that explanation must include the copyright holder because they're the only ones that start with the knowledge. So how does it get from them to the person with the link?

I've having trouble telling if you're even serious with this argument. If I go to a file locker site, locate the link for a copyrighted movie that's in theaters or just come out on DVD, and then provide links to it so other people can download that movie, I know that I'm linking to an infringing video. You seem to think that copyright owner has to tell me it's infringing, but I'm saying that common sense is at play as well. If I know a movie is in theaters or just came out on DVD, I know that the file locker's copy is infringing. To pretend like I don't know because the copyright owner didn't explicitly tell me is ridiculous because it's not just what I actually know that matters--it's what I should have known that matters too.

I think you're missing that willful blindness is knowledge: "Willful blindness is knowledge, in copyright law (where indeed it may be enough that the defendant should have known of the direct infringement, Casella v. Morris, 820 F.2d 362, 365 (11th Cir.1987); 2 Goldstein, supra, § 6.1, p. 6:6), as it is in the law generally." In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003) (Posner, J.).

As the Supreme Court recently explained:

The doctrine of willful blindness is well established in criminal law. Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence *2069 of critical facts that are strongly suggested by the circumstances. The traditional rationale for this doctrine is that defendants who behave in this manner are just as culpable as those who have actual knowledge. Edwards, The Criminal Degrees of Knowledge, 17 Mod. L.Rev. 294, 302 (1954) (hereinafter Edwards) (observing on the basis of English authorities that “up to the present day, no real doubt has been cast on the proposition that [willful blindness] is as culpable as actual knowledge”). It is also said that persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts. See United States v. Jewell, 532 F.2d 697, 700 (C.A.9 1976) (en banc). ***

Given the long history of willful blindness and its wide acceptance in the Federal Judiciary, we can see no reason why the doctrine should not apply in civil lawsuits for induced patent infringement under 35 U.S.C. § 271(b). ***

While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.9 We think these requirements give willful blindness an appropriately limited scope that surpasses recklessness and negligence. Under this formulation, a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to *2071 have actually known the critical facts. See G. Williams, Criminal Law § 57, p. 159 (2d ed. 1961) (“A court can properly find wilful blindness only where it can almost be said that the defendant actually knew”). By contrast, a reckless defendant is one who merely knows of a substantial and unjustified risk of such wrongdoing, see ALI, Model Penal Code § 2.02(2)(c) (1985), and a negligent defendant is one who should have known of a similar risk but, in fact, did not, see § 2.02(2)(d).

So if I link to a movie in a file locker that I know to be in theaters or to have recently been released on DVD, I "subjectively believe that there is a high probability that" the work is infringing, and by not inquiring about the file's legitimacy I have taken "deliberate actions to avoid learning of that fact." So I'm willfully blind and the knowledge I avoided obtaining is imputed to me.

I agree that not every link to an infringing file would lead to liability. That was never my claim. But linking can lead to liability because the linker can be willfully blind to the fact that the linked-to file is infringing, even if the copyright owner hasn't told him that it is. If the copyright owner tells him, then it's just actual knowledge.

This comports with the DMCA safe harbors, which don't apply if the service provider has "have actual knowledge that the material or activity is infringing" or is "aware of facts or circumstances from which infringing activity is apparent." 17 U.S.C. 512(d)(1)(A)-(B).

The knowledge standard for contributory infringement is "know or have reason to know." In other words, actual or constructive knowledge suffices:

Contributory liability requires that the secondary infringer “know or have reason to know” of direct infringement. Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 845 & 846 n. 29 (11th Cir.1990); Religious Tech. Ctr. v. Netcom On–Line Communication Servs., Inc., 907 F.Supp. 1361, 1373–74 (N.D.Cal.1995) (framing issue as “whether Netcom knew or should have known of” the infringing activities). The district court found that Napster had both actual and constructive knowledge that its users exchanged copyrighted music. The district court also concluded that the law does not require knowledge of “specific acts of infringement” and rejected Napster's contention that because the company cannot distinguish infringing from noninfringing files, it does not “know” of the direct infringement. 114 F.Supp.2d at 917.

It is apparent from the record that Napster has knowledge, both actual and constructive, of direct infringement.

If I provide links to movies that I know are in theaters or recently released on DVD, then I have reason to know that those files I'm linking to aren't authorized. Therefore, I have sufficient knowledge to find me a contributory infringer.

what seems to be happening in Holland is that each different court has different views and therefore rules differently on the same type case. i would have thought that specific decisions (precedents) were needed so courts knew what to adhere to. how one court can rule completely the opposite to another court makes no sense at all. people are going to be in the position of being innocent or guilty depending on who is ruling on the case, which is totally ridiculous.
i am also curious as to whether the bias arse hole that ruled on other copyright cases in Holland was involved in this one?

Re:

If it helps, the concept of "precedent" is a common law thing. Civil law jurisdictions (including the Netherlands) have a much more flexible system, whereby the cases are based more on the legislation than previous court rulings.

Given this, the courts are perfectly able to come to different conclusions, particularly based on different facts.

they are guilty, they can "report" on it, without linking the photos they know are being removed, hence they changed the link when the photos were taking down from one site and added the link to the new site, they used it solely to increase traffic and generate income, they are guilty

Bit of a one sided piece

If geenstijl had waited until the magazine was out this would never have made it to court. Geenstijl is a website with about the intelligence level of fox news. It specialises in bad taste pieces and constantly seeks to insult, taunt and annoy people. I expect they placed the files in various cyberlockers,

Thanks to geenstijl's idiotic actions we now have yet another bad judgement in a copyright case.

Re: Bit of a one sided piece

Re: Re: Bit of a one sided piece

The whole point all of this that copyright maximalists know that law is too slow catch up with technology,Any of judges certain courtrooms just don't understand that Internet itself is connected to more then one country and it that's too big have one national courts making rulings over it.

Re: Re: Bit of a one sided piece

The whole point all of this that copyright maximalists know that law is too slow catch up with technology,Any of judges certain courtrooms just don't understand that Internet itself is connected to more then one country and it that's too big have one national courts making rulings over it.

Maria...

"Similarly, it may be a bit exaggerated to claim -- as GeenStijl did in response to the ruling -- that the ruling outlaws Google. Again, the ruling does appear to be highly fact-specific. "

I know I am late to this party, but I have to pick at this one a bit, because it's sort of a perfect piracy apologists view of the world.

When a ruling supports piracy in some format, it's a "sweeping judgement" or "changes everything". When it goes against piracy, it's narrow or (in this case) "highly fact specific". Sadly, none of it is true.

The reality is that a site that intentionally links to infringing content is infringing. These guys made it blatantly easy and obvious by linking and then relinking to the same file hidden on various file locker sites (gee, I thought file lockers were only for legal stuff...). They made it incredibly clear that their intention was to specifically link to infringing material with full knowledge.

What is interesting is that it sets up a whole potential for a precedent, at least in that country, that this is infringement. That could mean anything including embedded content.

I like how the court cut past all the horse crap that serial infringers through up there to block the law (I didn't host it, I didn't know, SODDI) and basically said that site owner did it, they know it, and they went back and re-linked again even after knowing the file was infringing. All the bull crap about where it was hosted at the moment is irrelevant to the intent of the site operator here.

Mike, you need to pay close attention here. As AJ has mentioned above, this is another decision in the world that is in line with other rulings and comments made in judgements. Infringement can and does happen in different ways, you cannot blindly ignore the ramifications of your actions, just because you are doing them "on the internet".

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I know I am late to this party, but I have to pick at this one a bit, because it's sort of a perfect piracy apologists view of the world.

I'm late to your comment, but I have to pick at this one a bit, because anyone who uses the phrase "piracy apologists view of the world" is spouting bullshit.

When a ruling supports piracy in some format...

No ruling, ever, has "supported piracy in some format." Tautologically, a court ruling cannot "support piracy" in any way, shape, or form. The fact that you think it can, shows that you think perfectly legal things are "piracy."

..it's a "sweeping judgement" or "changes everything". When it goes against piracy, it's narrow or (in this case) "highly fact specific".

Funny, usually copyright maximalists accuse people of doing exactly the opposite. If it's not presented as "highly fact specific," but instead a "sweeping judgement" that "changes everything," the copyright maximalist camp accuses them of spreading FUD.

The reality is that a site that intentionally links to infringing content is infringing.

The reality is that a site that is told by the copyright holders of specific links on their system that point to infringing content, and do nothing to take those links down, then they can be liable for contributory infringement under civil liability theories.

Other than that, they're not infringing.

What is interesting is that it sets up a whole potential for a precedent, at least in that country, that this is infringement. That could mean anything including embedded content.

Aren't you doing exactly the same thing that you accuse the "piracy apologists" of doing? If a ruling supports copyright maximalism, it's a "sweeping judgement" or "changes everything." The plain fact is that the ruling is, in fact, fairly narrow.

I like how the court cut past all the horse crap that serial infringers through up there to block the law (I didn't host it, I didn't know, SODDI)

That's not "blocking the law." That's following it. If a site doesn't host the material, and/or didn't know it was infringing, then they are not infringing under U.S. law.

The fact that you view these sites as "serial infringers" shows, once again, that you think perfectly legal acts are "piracy."

you cannot blindly ignore the ramifications of your actions, just because you are doing them "on the internet".

This is complete bullshit, because these actions were not considered infringing until people were doing them "on the internet."

For example, the "linking sites" that we're talking about are no different than Hot Wacks. If you don't know, Hot Wacks was an annual magazine with discographies, mail-order contact info, and reviews, all devoted solely to bootleg recordings. It has been around since the 1970's, and the latest edition is still for sale on Amazon. And as far as I know, it has never been considered infringing. Yet somehow, when a website does the same thing, they're evil pirates who deserve to be arrested.

Can you please reconcile the following statements? I'm just trying to understand your thinking:

This is wrong. A contributory infringer is one who contributes to the infringement of another. They need not, themselves, actually infringe anyone's copyright to be considered liable. ... That case was significant because the MPAA had claimed that linking or embedding is direct infringement ... As it turns out, the MPAA was wrong. Big surprise there.

Patry is right in one sense - the "to authorize" phrase is designed to punish contributory infringers. It does this by making them no longer contributory infringers, but direct infringers.

It seems like you're saying that contributory infringers aren't direct infringers, but Patry is right because the Act makes contributory infringers into direct infringers. Huh?

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It seems like you're saying that contributory infringers aren't direct infringers, but Patry is right because the Act makes contributory infringers into direct infringers. Huh?

Bad wording on my part. I should have phrased it: "It does this by making those who 'authorize' no longer contributory infringers, but direct infringers."

"Contributory infringement" is not the same as "authorization." Neither is "inducement" nor "vicarious infringement." All of these were taken from civil case law theories of secondary liability. None of the modern secondary infringement cases (Napster, Grokster, etc) were based on the idea that they "authorized" reproduction or distribution. They did not.